January 05, 2012

Supreme Court v. Montana

by liberal japonicus

While there is no intention to turn this into a legal blog, questions of law are particularly ripe fruit for blog discussion because of the way they both channel and expand the discussion. Channel by giving some definitive context and expand by letting folks point out how these things can impact a lot of stuff that happens outside the court.

Perhaps it is just synchronicity, but the recent Montana Supreme Court ruling that relates to Citizen's United provides an opportunity for two discussion posts this week (but fear not, a friday open thread will appear as well) and Lithwick's piece on the decision is a good start.

Which brings us to the Montana Supreme Court, which more or less announced last week that it would similarly just ignore Justice Kennedy’s pronouncements about money and corruption. The Montana court more or less announced it would uphold that state’s corporate spending ban because they know a lot more about political corruption than Anthony Kennedy does. The Montana law was enacted in 1912 and provides that “a corporation may not make a contribution or an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party." After the Supreme Court handed down theCitizens United decision in 2010, many similar state laws were struck down by the courts or repealed, and a lower court in Montana agreed that the Montana ban was unconstitutional as well, finding that “Citizens United is unequivocal: the government may not prohibit independent and indirect corporate expenditures on political speech.”

But by a 5-2 margin, Montana’s high court determined that the state law survived “strict scrutiny” because Montana’s unique context and history justified the ban in ways not contemplated by Citizens United. In his majority opinion, Chief Justice Mike McGrath dove deep into that history, ranging back over the “tumultuous years … marked by rough contests for political and economic domination primarily in the mining center of Butte, between mining and industrial enterprises controlled by foreign trusts or corporations.” Noting that, back in the last Gilded Age, Montana's wealthy "Copper Kings" bought judges and senators, picked the location of the capital, and owned the media, McGrath pointed to Montana’s vast size, sparse population, low-cost elections, and long history of having its resources plundered by foreign corporate interests to emphasize that the state has a compelling interest in maintaining its ban.

Our prefecture as a sister 'state' with Montana and our university has had a long standing exchange with the UM system, In fact, when I first came here, a huge number of my inital conversations followed this pattern

Average Japanese person: Where are you from?

Average me: The US

AJP: Montana? [followed by long explanation about a relative going to Montana, or hosting a Montana visitor]

So I have a truckload of random Montana factoids, but it is good to see how they can come together and strike a blow for common sense even if it is likely to get struck down by the Supreme Court.

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Comments

Thanks for putting this up, LJ. I'd like to ask the legal beagles around here whether there's *any* way around Citizen's United besides a Constitutional Amendment.

If there isn't, what is the narrowest (=most passable) way such an amendment could be written to do the job?

In the previous post, I wrote that "in theory" starting with a small state permits even ill-funded candidates to do retail politics, do well, and on that basis raise the money to tackle the large states.

I'm not sure if Romney's SuperPACs in Iowa refute that, or not. On the one hand, they let Romney basically overwhelm Gingrich. On the other hand, Santorum almost beat him, despite a monumental funding disadvantage.

I don't see how an anti-CU Amendment can pass unless a considerable number of Republicans are behind it, but I don't see any incentive of them to do so -- unless the Christian conservatives realize that corporate money is steamrolling over them, too.

The shortest one I could come up with is: Congress may regulate political activities of entities that are not natural persons.
Maybe add to that: In particular it may limit (and regulate) financial contributions or the equvalent thereof in connection with elections for public office.
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Apart from a constitutional amendment SCOTUS could overturn itself on that question. But to me that is almost as unlikely to happen as Congress and 40 states agreeing on such an amendment.
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Although I fully agree with the Montana decision materially and disagree with the wider one in Citizens United*, I think this is bad precedent. This is to me on a basic level the same as states trying to circumvent e.g. Roe vs. Wade, the voters rights act etc. "This does not apply to us" has a very bad history of abuse. That it is for a change the federal side that is rotten does imo not matter. What needs to be fixed is the corruption of SCOTUS but that is a different pile of manure.

*the narrow case as brought to the court was probably decided correctly and should be counted as ugly but legally justified under the 1st amendment. What makes it a travesty is the unasked-for expansion that had nothing to do with the case in question. To me it looks like the Citizens United case was just a pretense for the corporatist wing of the court to do what it wanted to do.

That's a good point, Hartmut. On the possibility of overturn, it would simply take one judge to switch as it was a 5-4 ruling. One would hope that the care that McGrath put into the opinion might sway Kennedy, but I realize that's not how things usually work.

What I don't understand about the whole issue is that corporations are creatures of law. They don't exist without the law, whereas human beings exist regardless of the law (the law being a creation of human beings, to boot). So corporations are created to allow aggregations of human beings to act like a single legal entity.

It seems to me that the law can (and does!) limit what human rights apply to its own creations, so why not political speech?

Is there a way around CU in the terms under which corporations are, well ... incorporated? Considering the way rights and powers are granted in the constitution to the federal government, to the states and to the people, can rights be granted to corporations at incorporation, said rights being no more and no less than those granted, which may not include political speech at the corporate level (i.e. beyond the speech rights of the individual humans composing the corporation, which those individuals can exercise with their own personal resources)?

I don't see what principled distinction you can make between one person giving money to a political candidate and ten thousand people doing so. Obviously, in practical terms ten thousand people (or a corporation, which might wield power in excess of what ten thousand people do unless those people are in a swing state) are much more powerful than one.

I agree that political contributions are a terrible corrupting influence, but I do not understand the constitutional argument for the proposition that we can stop corporations from contributing without violating the first amendment.

I don't want to derail too much so if anyone can point me to a good article or explanation I'd appreciate it.

I was with you until you threw the word 'systemic'. When a systemic problem comes up, if it is of sufficient gravity, you fix the system.

I am carrying this over from LJ's post on the Steve Lawrence trial because it applies to this topic as well. The view, primarily on the left, that corporate money spent in aid of a candidate or a cause or an issue is 'systemic' and therefore merits a systemic remedy is a premise that has yet to be proved. In the Steve Lawrence matter, the systemic problem was a deficient police force. The remedy, a bad one in my view, was to pass an ex post facto law setting aside the protections of the hard and fast rule against double jeopardy, albeit with admirable built in safeguards. The other, far less intrusive fix would have been to address law enforcement going forward. Here, the issue is free speech.

Critics of CU would limit this fundamental right to natural persons only. Looking back to recent and problematic history, could the NAACP, as but one example, have withstood a federal gov't, or any number of state gov'ts, systematically repressing that organization's political activity? I think not.

Could individual African American citizens, i.e. natural persons, acting alone and using their limited personal funds in an effort to effect the changes that were so clearly needed have made the necessary difference? I think not.

The right of natural persons, from whatever walk of life or whatever persuasion, to band together in anonymity and advocate for a position or a person is and should be fundamental. Political speech isn't always popular speech. Many here post under pseudonyms out of concern that their private views, if known to employers or others, could place them in jeopardy.

The issue in CU was speech, not lobbying. That is different and should be regulated.

Speech, particularly political speech is at the core of our system of liberty, regardless of who the speaker is.

To answer Dr. S's inquiry--it would likely take a constitutional amendment.

To address the Montana SCt's decision, relying on a bad systemic problem then to justify limiting or restricting speech now is bad judicial reasoning. Further, as Hartmut pointed out, if states are free to disregard federal constitutional law that in fact does bind the states, then you have the country Ron Paul would have us all live in. No thanks.

It seems to me that the law can (and does!) limit what human rights apply to its own creations, so why not political speech?

Well, we aren't talking about the law, we are talking about the constitution. Which not only includes the right to free speech, but also the right of people to associate with one another. Corporate entities may be owned by one person or many, they may be formed for profit or not-for-profit, the list is almost endless. At the end of the day, they are people.

Corporations have the same due process rights as people, the same right to counsel, etc. The cure proposed brings with it an unknowable but vast range of ills.

The other, far less intrusive fix would have been to address law enforcement going forward.

The two "fixes" are not mutually exclusive, and the fix mentioned above is a good one for preventing future cases like the one in question, but does nothing about the one in question. (Not saying you're necessarily wrong about the dangers of ex post facto set-asides, just noting a significant distinction between what the fixes actually fix.)

The cure proposed brings with it an unknowable but vast range of ills.

How so? Corporations are chartered somewhere, under some jurisdiction. I don't know if, for example, the NAACP is a corporation or not, but if it's purpose is political association, it's charter can recognize this.

Laws were passed disallowing manufacturers of radios from also being broadcasters. In other words, you couldn't be both. So you're a political organization, solely, or not at all. Is that so hard?

I'm sure people would make attempts to get around something like that, but take that as it comes.

The whole point of the ex post facto rule is to prevent the state from punishing past conduct, or changing rules after the fact, to allow a prosecution of an act that otherwise could not be prosecuted. You can 'fix' anything after the fact, but the potential for abuse is limitless.

Critics of CU would limit this fundamental right to natural persons only.

Not this critic. See above, and below.

The right of natural persons, from whatever walk of life or whatever persuasion, to band together in anonymity and advocate for a position or a person is and should be fundamental.

I agree. They just shouldn't be able to use the vast resources of, say, GE or, better yet, Siemens, a German company, in doing so. Every member of GE, however you wish to define them, can get together and form a political organization to band together and exercise their rights of free association and free political speech whether GE, as a non-political corporation, has the same free speech rights or not.

You can 'fix' anything after the fact, but the potential for abuse is limitless.

The "potential" for anything is limitless, I guess, if that's how you like to put things.

Anyway, I think you misunderstood what I was saying, maybe.

Fixing the police force is a fix for the future, but does nothing about what the police already screwed up. All I'm saying is that the two fixes, namely the ex post fact set-aside of double jeopardy and changes to the police force, don't fix the same things.

That doesn't make you wrong, necessarily, about the dangers of ex post facto systemic set-asides.

@McKinneyTexas
Speech, particularly political speech is at the core of our system of liberty, regardless of who the speaker is.

Um...what? We must be reading different history books. In mine the history of political speech in the US is a series of 'how can we keep the {Irish, Italians, Communists, Blacks, Natives, Poor, Criminal, Blacks, Terrorists, etc} from having a voice'. Oh sure our 'system of liberty' talks about free speech, but heaven forbid that it ever exists. There may be chaos or a revolution or campaign spending limits and that would be terrible! I'd suggest a minor modification to:

Speech, particularly political speech is at the core of our system of liberty, as long as the speaker is privileged and the speech doesn't question that privilege.

Before reading this my only suggested solutions to CU involve violence against Antonin Scalia (unlikely, though I can still hope for a lightning strike) or ripping up that blasted 200+ year old piece of rubbish and writing a new one (unlikelier still). I'm intrigued by the logic that this wouldn't be an issue if voters weren't so easily swayed by money and specifically negative attack ads, but an educated populous is less likely than ripping up the Constitution.

This Montana approach is great though. At this point the SCOTUS' 5-4 decisions and choices of cases are almost as mind-boggling as the uselessness of the House of Representatives. Anything that can reduce their power is going to be good for everyone even if this only results in the SCOTUS having to reprimand lower courts. I say fill up their docket with examples like this that basically say 'screw you, we know better than you and don't have to listen to your rulings'.

Along the lines of HSH point of corporations being creatures of law, why couldn't the 50 states repeal their corporate statutes tomorrow and replace them with ones that prohibited corporate political activity (let's assume we can agree on what constitutes political activity)? Or, alternatively, strip corporations of their limited liability (prospectively, if that is constitutionally necessary)?

There are much easier paths toward improving the results of the Citizens United case.

For example: most US corporations are incorporated under Delaware state law. So, Delaware can pass a law on corporate governance, to wit:

Any expenditures of corporate funds (i.e., shareholder PROPERTY) in support of a political cause or candidate must be detailed in a report distributed to shareholders prior to expenditure, listing amounts and to whom the money will be given. There must then be a shareholder vote to approve these expenditures (just an up/down vote on the entire list) prior to expenditure; those shareholders that abstain or otherwise do not vote shall be considered to vote AGAINST expenditures.

To do otherwise is to take shareholders property and spend it in ways that do not maximize shareholder value, also known as "theft by conversion".

Now, if you REALLY want to kill off CitzUn by this route, just require that shareholders that vote against the expenditures will get the money refunded to them on a pro-rated basis, to "make them whole".

All this can be done just by a simple majority vote amoung state representatives, state senators, and a governor's signature, in one of the smallest states in the USA. Joe Biden might even help out.

Some corporations might move, but there are plenty of other important reasons that they incorporate in DE, so the likely result is that most corporations will just say "meh, to hell with the politics, just a bother".

I appreciate your comment linking this to the other post, McT, but a distinction I would draw here is that we are looking at a set of multiple systems (individual states and the federal government in the case of the US) and essentially a singular system in the UK. Which makes what they did more appropriate there than it would have been here, and which makes it possible for a state to choose not to 'defer' to the Supreme Court.

While there are some ins and outs about Citizen's United that bear on this question, I'm not well versed enough to be able to bring those points to bear. But in a more general sense, I believe that the ideal of the US federal system should be that it is a dialogue, with states and federal government engaging in a project that will improve the way we draw the lines rather than having one system simply assert that it has the final say and ignoring any points made by others. I believe that is what a lot of conservatives complain about when they take about high handed federal intrusion in their lives, isn't it? I'm sure that the stereotypicial Fox viewer image of a liberal is someone who blindly allows the government to invade all aspects of everyone's lives, but from my viewpoint, there has to be some give and take and imvho the Montana SupCt isn't simply trying to invoke a past historical condition to come up with ways to get around what is being handed down, it seems like is pointing out something that was overlooked and, as Lithwick points out, the way the Iowa caucus shook out suggests that the idea of anonymous outside groups pouring money in to influence choices within the state isn't past history.

You also worried about guilt by consensus in the Steven Lawrence case. As Lithwick notes

“Western Tradition Partnership, the lead plaintiff in the case, merits extra special scorn from the court for circulating a fundraising brochure that said, ‘If you decide to support this program, no politician, no bureaucrat, and no radical environmentalist will ever know you made this program possible.’ The majority openly accuses WTP of being responsible for ‘a multi-front attack on both contribution restrictions and the transparency that accompanies campaign disclosure requirements.’”

If you are worried about guilt by consensus, I would think it would bother you to have this fundamental lack of transparency made in the service of political support.

I would think it would bother you to have this fundamental lack of transparency made in the service of political support.

That shoe fits on many feet. Not every American wants their political views and support made a matter of public record. For that reason, SCOTUS held many years ago that the state could not compel the names of members in organizations then unpopular with certain local and state gov'ts. The right to anonymity is a subset of free speech, particularly political speech.

Then, there is the entirely subjective element of evaluating content--when has a corp's advertising crossed the line from commercial to political? BP touts its wind farms incessantly. There is a political undertone to that--"See, we're Green!!".

If you think the state is the right judge of that, do you want Democrats running that state or Republicans? To me, the only answer is: neither, keep them both out of it.

BP touts its wind farms incessantly. There is a political undertone to that--"See, we're Green!!".

Sure, but it directly relates to their business and hardly (really not at all) has anything to do with campaigning for a given political candidate. I'm not sure anyone is saying that corporations can't say anything with political undertones or can't engage in any political speech whatsoever. We sort of gloss over it, but we're really discussing campaigning ahead of elections. The restrictions could be fairly narrow and well defined while still preventing the sorts of problems I and others are primarily concerned about, even if they don't address every concern or make it a perfect world.

Might someone have to exercise a bit of judgement from time to time? Sure, but that's life. Happens all the time.

And, concerning CU, there were rules in place for years, without the unknowable and vast range of ills suggested, prior to the ruling. What if they were put back in place? Would it be a Brave New World, or just a return to a fairly mundane status quo ante?

Russell--we don't disagree about the problem, we disagree about the remedy, and whether there should be one. I think a fair reading of you comments illustrates why limits on speech won't work without doing far greater damage to the core principle of free speech: media corps vs. non-media corps, some political speech is ok, if the specific purpose is engaging in protected speech, etc are all inquiries that require the state to evaluate subjective, non-quantifiable matters of intent, subject matter, content and so on. A statutory scheme setting out who has to do what in order to say this or that, and when this or that can be said puts anyone without substantial means in jeopardy of violating the law due to inability to get a prior legal opinion on whether they can or cannot speak. Further, the only way to keep someone from speaking is to enjoin them, i.e. actually suppress the speech. This should give everyone pause. Your targets are mega-corps, but they are single trees in a forest of mini- and mid-corps.

Just to be clear, I'm saying that corporations deserve no constitutional protection as regards political speech.

Sure. But one can agree that X has no constitutional protections regarding Y without advocating restricting X as far a the constitution would allow regarding Y. IOW, just because you can restrict something without running afoul of the constitution doesn't mean you either have to or should.

But I think we agree in that I don't really see that corporations, as creatures of law distinct from the people composing them, have any constitutional protections that the law doesn't confer to them for the practical purposes of their existences.

Quite frankly, I don't know if the NAACP is incorporated or not. I'd bet that it is, but I don't know. It certainly could be and stock certificates are negotiable. So, just to fix this technical glitch, suppose the NAACP is a corporation with the shares of stock held closely by individual shareholders and they sell to Exxon: how do we apply our 'corporations aren't people and have no right to free speech' regime in this context?

It looks like commenters on this blog are able to distinguish such things quite easily without anyone so much as batting an eye. I'd say prove that we, as a society with a legal system that manages all sorts of complicated stuff, can't.

Corporations chartered for non-political purposes can't buy the stock of corporations chartered for political purposes. Easy-peasy.

And who gets to decide what is and is not 'political'? It's like pornography: first, it's in the eye of the beholder and, second, you know it when you see it, but how do you define it?

There is a constitutional doctrine by which criminal statutes are tested for due process: do they clearly set forth the proscribed conduct and clearly identify the elements of the offense such that citizens can conform their conduct to the requirements of the law? If not, the statute is void as too vague. They call this the 'void for vagueness doctrine', a big problem in all of this definitional stuff we are throwing around here.

Many laws discriminate on some basis. Drinking age, voting age, etc. Is your point that since we can tax corporations differently from individuals, we can regulate corporate speech differently too?

The reason(s) we tax corporations at the entity level are complicated, not obvious, and not familiar to me, so I think the burden is on you to show that the constitutionality of tax distinction necessarily means that the government can make speech distinctions. If you think the US code explains that somewhere, let me know where.

Free speech protection is, I suspect, supposed to be content- and speaker-neutral. Can someone make the first amendment argument for the constitutionality of a law that limits a corporation's ability to buy political advertising? Keep in mind that I am firmly anti-Citizens United as a practical matter, but I really do not know what the progressive counterargument is that would allow laws like the one (ones?) struck down in CU to avoid violating the first amendment.

They call this the 'void for vagueness doctrine', a big problem in all of this definitional stuff we are throwing around here.

I'm not writing a law. I'm only saying I think it can be done reasonably definitively such that to wouldn't be subject to something like the "void for vagueness doctrine." Again, maybe well-defined restrictions would fall short of remedying any given person's full list of ills, but they still might be better than nothing at reducing the deleterious role of mountains of corporate cash in our politics.

More narrowly than what russell might be talking about, though, how were the rules CU eliminated so impossible before CU that they couldn't be restored?

I don't know if the NAACP is incorporated or not. I'd bet that it is, but I don't know.

I looked and, while I don't have anything definitive, the NAACP is almost certainly a "non-stock corporation" that's controlled by its members, and so doesn't have "stock" as such. Instead the members ultimately control the organization, but in order to be a member one must meet certain requirements as set forth in the organization's by-laws, which I would guess almost certainly preclude corporate members.

So, just to fix this technical glitch, suppose the NAACP is a corporation with the shares of stock held closely by individual shareholders and they sell to Exxon: how do we apply our 'corporations aren't people and have no right to free speech' regime in this context?

I guess I would point again to my reference to that holiest of documents, The Internal Revenue Code of 1986 (as amended). Specifically, section 501 thereof, which (generally) limits non-profit status to entities that are "organized and operated exclusively for religious, charitable, scientific... literary or educational purposes" (among other things), and which (nevertheless) imposes an unrelated business income tax on such entities, AND ALSO (and here's the point) limits the political activities of such organizations.

So, my (off the cuff) standard would be if your entity doesn't qualify for non-profit status under section 501, you aren't allowed to engage in any political activities.

"It looks like commenters on this blog are able to distinguish such things quite easily without anyone so much as batting an eye. I'd say prove that we, as a society with a legal system that manages all sorts of complicated stuff, can't."

1. I batted both eyes. McKT, at least one.

2. When the standing Supreme Court decision is against you, it behooves you to make an argument against it. If progressives smirk at each other and demand that conservatives make the case, guess what, it was already made, we lost. If it's so easy to tear apart CU's logic, why not do it right now, in a paragraph or two?

3. Here's the case for CU, as I understand it: there is no principled difference that first amendment jurisprudence respects between corporations "speaking" by buy airtime or billboards, and individuals doing so. Yes, corporations are big, immortal, faceless, but corporations are still animated by people. No corporation does anything without people. If you make a law forbidding corporations from buying airtime, they will just set up independent unincorporated entities to do so. To distinguish between corporations, their pet organizations, and the ACLU on the basis of their motives would draw courts into incredibly difficult subjective inquiries about motivation and the nature of "political speech."

"So, my (off the cuff) standard would be if your entity doesn't qualify for non-profit status under section 501, you aren't allowed to engage in any political activities."

This is internally inconsistent and irrelevant. First of all, you say that 501 mandates that for a nonprofit to keep tax-exempt status, it must respect certain limits to political activities. Then you say that if some entity fails to qualify as a nonprofit, it must be precluded from engaging in political activities?

Need I point out that I, Julian, am not a nonprofit, and would be precluded from political activity under your off-the-cuff rule? Why should an entity that doesn't fall within the category of things-whose-political-activities-are-curtailed have its political activities completely precluded? That's like saying child molesters can't live within 500 yards of a school and innocent people can't live within 10,000 miles of one.

As for irrelevance, tax-exempt status is a privilege Congress provides because Congress wants to encourage certain activities and fears regulating others (i.e. churches). If you are a nonprofit with tax exempt status, and you exceed the limits of 1986, I strongly doubt the government can or will enjoin your speech. Instead, they might revoke your tax-exempt status. Tax exempt-status and free speech rights are different things.

Julian, I've already made my views clear on the logic against conferring full constitutional free-speech rights to corporations. It's simple. They only exist as legal entities for certain commercial purposes, and they exist as entities distinct from the individuals composing them. The rights of the individuals are not dependent upon the rights of the corporation. Any member of the corporation, with his or her own personal resources, may engage in whatever protected speech he or she likes, individually or as a group. A group of individuals formed for the purposes of political speech can use group resources to make political speech free of restriction, as protected under the constitution. Yes, corporations are made up of people, but the people and their rights exist regardless of the existence or rights of the corporation. The corporation is a legal entity unto itself and is so as a creation of law, not something with natural rights of any sort.

if your entity doesn't qualify for non-profit status under section 501, you aren't allowed to engage in any political activities.

Here's a short list of problems with this:

1. non-profits ARE specifically excluded from political activity.

2. yet, many of them do it anyway (NAACP, Planned Parenthood, and so on).

3. some get away with it because the administration in office is friendly.

4. some don't.

5. it's a mess when the feds try to parse the political from the self-advocacy of an organization.

6. the touchstone for non-profit status, i.e. free of taxation, is that they must be "exclusively" devoted to one of the prescribed areas.

7. your proposal would limit corporate speech to corp's "exclusively" set up to advocate? So, what about for profit print and air waves media?

8. Getting to Julian's batted eyes (I batted both as well): Can a proponent of overturning CU define for me "political speech" in a manner that can be fairly, consistent with the First Amendment, incorporated into a statute so that the state can judge content. See my BP wind farms example and tell me why that is or is not 'political'? I suppose we'll need a definition of 'context' also.

On another note, it's early here, but the weather is fabuloso, so it's off to work on my short game followed by a martini. So, adios until Monday. Have a great weekend, All.

On a totally off-topic note, personal to Count, check out cheeseburgergothic.com and give me your thoughts on the Pony Teaser. Might be a useful metaphor for your repertoire.

"A group of individuals formed for the purposes of political speech can use group resources to make political speech free of restriction, as protected under the constitution"

The first amendment doesn't protect speech made by groups "formed for the purposes of political speech." A corporation is another kind of group of people, and I don't see what part of the first amendment allows you to carve out an exemption that disfavors them. Just because you can point out distinctions between corporations and people does not mean that those distinctions have significance with regards to first amendment protections.

Ugh beat me to it. For further entertainment, here is the section of the US code that lists all of the organizations that are exempt from income tax.

The tax code: so what?

It demonstrates an ability to make crisp distinctions, in law, between different types of organizations.

Which is what you asked for. So, QED.

suppose the NAACP is a corporation with the shares of stock held closely by individual shareholders and they sell to Exxon

It's not.

If it's so easy to tear apart CU's logic, why not do it right now, in a paragraph or two?

I won't address CU per se, but I will be happy to address the doctrine of corporate personhood.

First, the plain meaning of the word 'person' as used in the Constitution and its amendments refers to natural human beings, not corporate entities. Here is the text of the Constitution, go and see for yourself.

Corporations, whether for-profit, political, benevolent, or what have you, have existed as an institution for a very long time. They have always been granted limited privileges to enter into contracts, buy and sell goods and property, etc., but historically those privileges have been limited, often quite limited, and have not been construed as evidence of human personhood.

The idea of corporations as a 'person' coequal with human persons for purposes of Constitutionally protected civil rights emerged in this country in the 19th C. The case law based on the 14th Amendment came about as a result of a specific, dedicated, generation-long campaign, in particular by the railroads, to establish that precedent. It has been far from universally recognized, in fact CU is something of a historical outlier.

Corporations *are not* synonymous with the people who own them, work for them, or otherwise participate in them. In many cases - especially on the for-profit side - corporations exists *specifically* to act as an entity distinct from their human participants.

As a practical matter, saying that corporations are people is simply a mechanism allowing the actual, human people who command their resources to use them to further their political or social ends.

I think it's fine for those people to do that, I simply want them to use their own money, not those of a corporation.

It is true that we currently use the corporate form to organize ourselves for specifically political activity. I think that organizing for engaging in constitutionally protected activities should continue to be allowed. As demonstrated from the tax code and other laws, we are more than able to distinguish between different kinds of groups of people organizing for different purposes.

As far as I'm concerned, this discussion shouldn't even have proceeded beyond my first point. Corporations are plainly not human persons, and the word 'person' in the Constitution plainly does not apply to anything other than natural, living, human persons. In my opinion, the burden of proof is on folks who would claim otherwise, because that is the counterintuitive and counterfactual claim.

This is internally inconsistent and irrelevant. First of all, you say that 501 mandates that for a nonprofit to keep tax-exempt status, it must respect certain limits to political activities. Then you say that if some entity fails to qualify as a nonprofit, it must be precluded from engaging in political activities?

McTx asks how to distinguish between Exxon and the NAACP. For purposes of non-profit status, the tax code does this, so I propose we adopt that standard for distinguishing entities (it would still likely leave the problematic case of the for-profit NYTimes).

Need I point out that I, Julian, am not a nonprofit, and would be precluded from political activity under your off-the-cuff rule?

Are you an entity that owes your very existence to state law?

Finally, I'll admit I screwed up my last point on curtailment of political activities (I blame my short use of all caps). I meant that as an additional example of how current law distinguishes between what is political and what is not. Obviously revoking tax exempt status and prohibiting free-speech are different things.

"It demonstrates an ability to make crisp distinctions, in law, between different types of organizations."

"Which is what you asked for. So, QED."

Sorry, I should have been clearer. Please prove that it's simple to distinguish between them for the purposes of first amendment protection.

"[A]n ability to make crisp distinctions" is not a sufficient condition. I have a yellow shirt and Ted has a purple shirt, but that distinction is not sufficient to make a law forbidding purple shirts constitutional. The distinction has to be relevant.

So what relevance does corporate status have for curtailing first amendment rights? A corporation is a group of people. If you forbid a corporation from donating money, the corporation is not what gets mad about it.

"Are you an entity that owes your very existence to state law?"

No, so what? I understand that I am not, but I don't see where in the first amendment or in first amendment case law that that matters.

There's at least one case where it was progressives arguing that corporations should be people for the purposes of statutes, specifically (I think) Title VII in Monell v. Dep't of Social Services.

The ads against Gingrich in Iowa seemed to be effective in reducing his support. I have not seen any of them, but I would guess that they attack his history in ways that he finds difficulty refuting or, to do so, he has to start explaining, which is bad. Santorum showed, at least in Iowa, that money is not definitive, if you are able to get your message out. IMO, Iowa, and many other election results, demonstrate that on the front end, money is not the critical factor, except perhaps in the case of incumbents. For incumbents, the money may well flow from institutional interests if the performance in office of the incumbent has proved beneficial to those interests. These is where the advantage begins to accrue.

We are going to have, in my view, an interesting Republican contest in Utah for the seat held for the last 36 years by Senator Orrin Hatch, who is not accustomed to being challenged. Dan Liljenquist, a state legislator who recently was recognized for his efforts on behalf of the residents of Utah, is one of those challenging. Utah has a precedent for this. Senator Bennett was so challenged last time and failed to make it out of the convention and into the primary, which was won by Mike Lee.

Recently, I saw materials showing that Senator Hatch raises large sums for his campaigns, of which about 90% comes from sources outside Utah, with no significant or specific connection to the state of Utah. So this makes for an interesting consideration for Utah voters to determine which candidate is actually going to represent the state of Utah.

I enjoyed the last Senate race here. I think I'll enjoy this even more. I don't think Hatch will topple as easily as Bennett, but it should be fun and it may shed some light on incumbents and money.

Corporations are associations of people that have a legal identity and a continuous existence separate and distinct from the people who participate in it.

Corporations exist *specifically to create that distinction*.

Corporations are, precisely and intentionally, *not* the people who participate in them.

The corporation is not what gets mad about it.

Correct. The human person or persons who wish to use the corporation's resources for some political end is who gets angry.

That person's rights, however, have not been violated in any way, shape, or form. They've simply been required to use their own resources to do whatever it is they want to do.

Please prove that it's simple to distinguish between them for the purposes of first amendment protection.

Sure.

Whose resources are being used?

So, what about for profit print and air waves media?

Content is authored by humans. Humans have rights.

So, no more "the editors of the NY Times say", somebody has to sign their name. If you want to opine, you have to speak for yourself.

And yeah, it's the company that has the deep pockets to pay for the legal challenges. And, they'll do so for the same reason they do so now, because the content is what drives their revenue.

We currently protect 4th Amendment rights for people's mail, phone calls, and some electronic communications to be secure from unreasonable seizure or inspection, which are *all* physically held and managed by for-profit third parties. The protection is based on the *individual human person's* rights, not those of the corporation that owns the wire. The corporation that owns the channel does not have to hold the rights in order for the rights to be protected.

Need I point out that I, Julian, am not a nonprofit, and would be precluded from political activity under your off-the-cuff rule?

"Are you an entity that owes your very existence to state law?"

No, so what? I understand that I am not, but I don't see where in the first amendment or in first amendment case law that that matters.

But the point in the first is that you've asserted that the law is incapable of making any distinction between you as a natural person who seeks to earn profits, and a corporation that seeks to earn profits. I think it's fairly clear that the law can make that distinction, or else e.g., you're being taxed as a corporation and not as a natural person. If so, then your argument that a law restricting political speech of non-non-profit corporations will perforce sweep you up in its net is entirely spurious. The law can and does make distinctions between natural persons and corporations. Placing strictures or special rules on corporations does not immediately cause those strictures to be imposed on natural humans that share some characteristics of the corporations being affected by the law. Regardless of the worth or pertinence of anything else you have said here, your above argument in re: laws limiting political speech of for-profit corporations restricting natural human rights because natural humans do not meet the definition of "non-profit corporation" is wholly without merit.

Bringing up the NYT, perhaps there's a reason that freedom of speech and freedom of the press are each listed as items separate from one another. There are laws that apply exclusively to media entities, which means the law manages to differentiate between them and other types of entities.

Julian, the "prove it" question as I understood it was a practical question about the ability to differentiate between political groups, individual humans, and non-political corporations for the purposes of writing reasonably effective laws. That isn't a constitutional question, per se.

With that, why can't corporations vote or marry or adopt children? By your logic, that is discrimination.

In an exchange this month with Chief Justice Roberts, the solicitor general, Elena Kagan, argued against expanding that narrowly defined personhood. “Few of us are only our economic interests,” she said. “We have beliefs. We have convictions.” Corporations, “engage the political process in an entirely different way, and this is what makes them so much more damaging,” she said.

Chief Justice Roberts disagreed: “A large corporation, just like an individual, has many diverse interests.” Justice Antonin Scalia said most corporations are “indistinguishable from the individual who owns them.”

The Constitution mentions the rights of the people frequently but does not cite corporations. Indeed, many of the founders were skeptical of corporate influence.

John Marshall, the nation’s greatest chief justice, saw a corporation as “an artificial being, invisible, intangible,” he wrote in 1819. “Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence.”

I'm with John Marshall. And leave it to Scalia to produce the most absurd position. Plenty of corporations are owned by a great number of individual, individuals who own pieces of many corporations. I guess they're all indistinguishable, like a big corporate-human lump of squished-together play-dough. And even if a corporation is owned by a single person, can you not tell that person from the corporation when it comes time to sue or enter into a contract? I'm guessing the indistinguishability quickly disappears in Justice Scalia's eyes then.

I don't know if Russell is an outlier, but I share his opinion. The critical distinction, in my mind, is that the political expenditures of large for-profit corporations are controlled by a very small group of individuals, and necessarily reflect their political views, and not those of all, or even necessarily a majority, of its shareholders.

If you polled Exxon shareholders, including those holding shares indirectly, on how they voted in 2008, what do you think the result would be? How likely is it that either Obama or McCain got less than, say, 35% of their votes?

So no, we should not consider a corporation an association for these purposes. Investors buy stock in the hope of earning a return, not to support political candidates.

In this sense a for-profit corporation is clearly different from an association like the NAACP, which has explicitly political goals. The NAACP, like the NRA and countless others, is a membership organization. Its funds come directly from its members, who support its stated goals.

I really don't see why the distinction is so difficult. Exxon and the NAACP are both corporations. So what? That categorization is irrelevant. You might as well say that 747's and bicycles should be subject to the same rules, because both are transportation vehicles.

Notice that restricting Exxon's rights this way restricts absolutely no individual's freedom to speak for or contribute to a candidate. Nor, if we recognize the distinction here, does it restrict groups of individuals from forming an organization to support certain candidates or parties. It simply says that the CEO of Exxon can't spend his shareholders' money for political activity that a large percentage of them disapprove of.

The reason we have very large wealthy corporations is that corporations enjoy legal privileges that enable them to grow large. These include not just limited liability, but immortality. We further have a host of structures that encourage buying and selling shares, making it easier to accumulate, from the general public, the large amounts of capital these organizations need.

So there are legal privileges that enable this concentration of capital in the hands of large organizations. Necessarily, this capital is at the disposal of the organizations' managers. (I'll note that our laws also do a good job of protecting these managers from the wrath of their shareholders.)

It hardly seems unreasonable to place limits on how this legally privileged mass of many people's money can be used by those who control it.

If a corporation is held to have rights to political speech because it is made up of persons, suppose we modified/complemented Snarki's 10:22 AM suggestion this way:

The sources of political contributions are required to be published. So, if a corporation makes a political donation, the donation will list its beneficial owners, including what portion of the company they own.

Better yet, list the donation as coming from the CEO and Board members.

Losing the ability to be anonymous would not totally solve the problem. But it would be a step forward.

"But the point in the first is that you've asserted that the law is incapable of making any distinction between you as a natural person who seeks to earn profits, and a corporation that seeks to earn profits."

That's not what I meant to say. I know that it is possible to distinguish between a corporation and a person. My point is that you have failed to show that the distinction between them matters with regards to first amendment rights. You claim that it's dead simple to distinguish between people and corporations, and of course you're right, but that is also not the hard part of the argument.

"Julian, the "prove it" question as I understood it was a practical question about the ability to differentiate between political groups, individual humans, and non-political corporations for the purposes of writing reasonably effective laws. That isn't a constitutional question, per se."

Nope, that is not what I meant, I apologize if I was unclear. The constitutional question is whether the distinction between people and corporations should mean that the government has broader powers to limit political speech of corporations.

So, it is easy to distinguish between cats and dogs, but that doesn't mean it's easy to prove that we should outlaw dogs but not cats.

"The critical distinction, in my mind, is that the political expenditures of large for-profit corporations are controlled by a very small group of individuals, and necessarily reflect their political views, and not those of all, or even necessarily a majority, of its shareholders."

That sounds like a corporate governance issue, but not necessarily one that justifies abridging first amendment rights. If the board of some corporations are misusing company funds, why isn't the solution better policing of that misuse? What would you say to a corporation that is donating to candidates its investors do support? Would it be bound by such a law? The first amendment is very, very broad, and the mere fact that we like the outcomes produced by campaign contribution caps doesn't make those caps constitutional

If investors don't like a corporation's political activities, they can invest somewhere else. Corporations have a fiduciary duty to shareholders, and you could even argue that Exxon has an affirmative obligation to make political contributions, since that surely helps them get favorable energy policy passed which goes towards their and the stockholders' bottom line.

"It hardly seems unreasonable to place limits on how this legally privileged mass of many people's money can be used by those who control it."

I agree, the problem being that the first amendment is extremely broad and not always reasonable. I mean, how reasonable is it to let neo-Nazis march through a Jewish enclave? It's not, but the first amendment protects it. So though I agree with you that corporations represent an unprecedented concentration of money and power, and that we need to find a way to limit their influence, I don't know that the Constitution as it currently exists allows such a limit.

We can do loads of cost-benefit analysis about how bad it is to allow corporations to spend unlimited money on political speech, and I'll agree with all of them, but the fact remains that the constitution doesn't let us make pure cost-benefit analysis based laws.

"Losing the ability to be anonymous would not totally solve the problem. But it would be a step forward."

I don't know that it's perfectly applicable here, but the right to anonymity of political donors has some protections; in NAACP v. Alabama, the AL Attorney General demanded that the NAACP provide a list of its donors, and the SC upheld the NAACP's right to refuse. How would you distinguish that case, which I am confident we're all in favor of, from compelling a corporation to disclose its donors?

I'm still trying to figure out whether or not to ask McK what political activity he thinks Planned Parenthood performs, aside from providing healthcare, performing abortions, getting firebombed constantly, and having its employees stalked, harassed and shot.

The constitutional question is whether the distinction between people and corporations should mean that the government has broader powers to limit political speech of corporations.

No, it is not.

The constitutional question is whether corporations are persons for purposes of interpreting the constitution and it's amendments.

Answer that and the rest is not so complicated.

And if the answer is "yes" this whole thread is moot. Corporate engagement in the political process cannot be limited by law any more than that of an individual human being, because it's protected speech.

The question to answer is whether corporations are persons, for purposes of inalienable, constitutionally protected rights.

Justice Antonin Scalia said most corporations are “indistinguishable from the individual who owns them.”

And, of course, Justice Scalia will be the first one to argue that any of his attorney buddies, operating as an LLC, should be vulnerable to having their personal home, savings, and any other wealth, including their complete set of mint condition 1955 Brooklyn Dodgers baseball cards, humidor full of primo Cubans, and still-in-the-celophane-wrapper copy of "Meet The Beatles", seized by a client who wins a judgement against them for malpractice.

1) Corporations are a tool. They're a legal construct, rather than a mechanical or electronic one, but a tool nonetheless.

2) We already make a variety of distinctions and regulations about how many tools may be used, including, I think whether (or how) they may be used for political speech.

For example, you're not allowed to use an aviation-band radio to broadcast political ads. And you might reasonably have some difficulty obtaining a permit to use mining-explosives to blast a political ad into a hillside.

Even though those tools are deemed useful and legitimate for a defined set of purposes, and operated by human beings with full constitutional speech rights.

I'd add that is not only does deeming a tool like a radio, a stick of dynamite or a corporation a "legal person" seem nonsensical on its face, it doesn't really seem to justify the use of the tool in socially irresponsible ways.

The protection is based on the *individual human person's* rights, not those of the corporation that owns the wire.

Er, I don't think this is generally true. For example, I believe fourth amendment protections are significantly reduced for metadata specifically because it resides on a corporations servers: the legal argument is that Verizon has no privacy interest at all in the list of numbers I called. I do, but Verizon doesn't, and since Verizon is in possession of that data, they can't object when the government asks for it.

That's why email you store locally on your computer at home has much stronger protections that email you store at an email provider; the provider has no privacy interest since it is not their email.

Julian: That sounds like a corporate governance issue, but not necessarily one that justifies abridging first amendment rights. If the board of some corporations are misusing company funds, why isn't the solution better policing of that misuse?

That is a very impractical approach. It is more likely the executive management of a corporation making such decisions, not the board, and executives usually have a much stronger position than the shareholders or the directors. Consider the many examples of management driving companies nearly to bankruptcy (or into it) before being ousted. An issue of political contributions is very unlikely to provoke anyone to act. Even in privately held, venture funded companies investors typically act against management only in the most extreme circumstances.

wj: The sources of political contributions are required to be published. So, if a corporation makes a political donation, the donation will list its beneficial owners, including what portion of the company they own.

Although posters including McKinneyTexas rightly raise a concern about a need for anonymity, I think full disclosure is the only way forward. We live in a time when advertising has become an advanced technology, well studied and applied assiduously in politics. The corrupting influence of money is not absolutely powerful, but it is very strong.

People with money will always find a way to influence others. The best we can hope for is to be aware of it.

Anonymity applies to natural persons individually not necessarily associations of such persons. Therefore I see no problem to demand disclosure of contributions in case of the latter. If a corporation forms a front in order to hide its identity, the same would apply, i.e. individual donors to that front would retain their anonymity while corporate donors would not. If the donations come from a corporation's management as individuals, they would be treated as persons with right to anonymity. If they use corporate funds and do not disclose, they are to be treated as common thieves (to start with) because they take somebody else's money (or equivalent thereof) for personal use.
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Btw, I find it remarkable how the individuals controlling corporations fight tooth and nail against any attempts to hold them responsible to the shareholders for decisions made or to be made (like but not limited to spending money on activities that are not the primary purpose of the corporation).

"Another question, to further the point, is, whose rights are being violated if corporations are not allowed to make political speech?"

The individual board members and stockholders of the corporation who want to use the corporation's money that way. You might say that they can spend their own money. Well, the corporation has more money, and they probably want to spend as much as is profitable to them. I assume the counterargument is that stockholders who don't want to make political contributions are getting screwed here, to which I think the rebuttal is: there's no Constitutional right to have your invested money NOT spent on political speech, but there is a Constitutional right to spend money on political speech. So the protection does not flow both ways equally.

"That is a very impractical approach. It is more likely the executive management of a corporation making such decisions, not the board, and executives usually have a much stronger position than the shareholders or the directors."

It might be impractical, but impracticality of alternatives does not necessarily justify abridging the first amendment.

"The constitutional question is whether corporations are persons for purposes of interpreting the constitution and it's amendments."

I think this is a straw man. I think the counterargument is that the question is, rather, whether corporations are a form of association of persons which allows for greater political spending restrictions on the money that belongs to the corporation and is directed by its owners.

You better go talk to the Supreme Court if you think that's a strawman, Julian. Even the supporters of corporate personhood say that's what it's about. They just come down on the other side of the question.

I think the counterargument is that the question is, rather, whether corporations are a form of association of persons which allows for greater political spending restrictions on the money that belongs to the corporation and is directed by its owners.

That's not a counterargument. You're just backing into russell's original question. If corporations are not constitutionally equivalent to persons, then they can be restricted in ways that persons cannot.

And the constitution doesn't say anything about spending money in the 1st Amendment. The interpretation is that you can use whatever resources you legally have at your disposal to produce your free speech. The problem is that there is no "you" in the case of a corporation. There's a difference between corporate money and personal money. The CEO can't take money from the corporate coffers and build himself a house outside of his compensation package.

How is it that a member of a corporation, however you care to define that, has free speech rights before and after said membership, which are considered to be whole, and that, if they are unchanged during said membership, they are considered to be violated during said membership? In other words, why is it that you consider the member's rights to be diminished because the corporation's rights are less than the member's, even though the member has the same rights as before and after membership in the corporation?

And can you please address the point that a corporation's very existence is a purely legal construct and that a corporation has no natural rights?

I believe fourth amendment protections are significantly reduced for metadata specifically because it resides on a corporations servers

That's true but it's not due to who holds the right to privacy.

The issue with metadata is that there is no reasonable presumption of privacy. That information has to be visible to a third party - the ISP, mail carrier, etc. - in order for the communication to function. So, it is not covered by the 4th Amendment at all.

For the same reason, the strength of 4th Amendment protection is weaker for phone numbers, which have to be publicly visible in order for your call to be routed, and the address written on the envelope of any letters you mail, which have to visible so that they can be delivered.

But in all of these cases, the owner of the 4th Amendment right is the human being doing the communicating, not the channel via which the communication happens.

The individual board members and stockholders of the corporation who want to use the corporation's money that way.

This doesn't hold up.

First, in the case of the board members, unless they also hold equity in the corporation, IT'S NOT THEIR MONEY. To my knowledge, there is no Constitutional right to spend some other guy's money on political speech, at least not without their express consent and knowledge.

Even for folks who are equity holders, the corporation's money is not theirs to use as they wish. The corporation's money is in fact intentionally distinct from their own, personal money.

THAT IS WHY THE CORPORATION EXISTS IN THE FIRST PLACE.

The Constitutional right that actually is lacking here is that of the owners or directors of corporation to use a corporation's money in any way they like. In fact, the ways in which the owners or directors of a corporation can use its resources are highly restricted.

That is part of the bargain the investors make in return for the numerous legal protections and privileges they receive for investing their money in the corporation, rather than burying it in a jar out in the back yard.

And, in fact, folks who invest in corporations have very serious legal claims on how the corporations' resources are spent. So, your claim that "there is no Constitutional right to have your invested money NOT spent on political speech" may not be so.

I'm not sure the question has ever been tested; you may be assuming a fact not in evidence.

The fact of the matter is that there is no person - none, not one - who would be prevented from engaging in political speech, or speech of any kind, if corporations were stripped of first amendment personhood.

You are correct, they would have to use their own money. Which is what is appropriate, because in the examples you give, the corporations' money is either not theirs at all, or is not theirs to use for any purpose they wish.

That sounds like a corporate governance issue, but not necessarily one that justifies abridging first amendment rights. If the board of some corporations are misusing company funds, why isn't the solution better policing of that misuse?

Whose rights are abridged? No one's. And I would argue that campaign contributions are virtually always a misuse, for the reason that they inevitably conflict with the interests of a large percentage of shareholders. And yes, the solution is better policing, such as not allowing it. I think, at bottom, your argument is circular. You assume corporations have the same first amendment freedom of speech rights as individuals, so you inevitably come to the conclusion that they cannot be restricted any more than individuals' rights can be.

The counter is that there are good and sufficient reasons to restrict corporations' rights. These include the agency problems and the fact that the law is specifically designed to give corporations large resources not available to more than a handful of individuals, and thus should be able to restrict the use of those resources.

What would you say to a corporation that is donating to candidates its investors do support? Would it be bound by such a law? The first amendment is very, very broad, and the mere fact that we like the outcomes produced by campaign contribution caps doesn't make those caps constitutional.

No such thing. Do you seriously believe that all, or an overwhelming majority, of the shareholders of corporations support the same candidates. That's nonsense. And if they do they can contribute as individuals. In fact, even under this scenario there is an agency issue. Why should management decide the size of shareholders' contributions? Not all supporters want to be contributors. What percentage of voters in any given election do you think made financial contributions to their preferred candidate?

If investors don't like a corporation's political activities, they can invest somewhere else.

No they can't, and they shouldn't have to. First of all, investors don't know about these activities until after the money spent, if at all. Second, many investors don't even know what companies they are invested in. This includes those whose investment is through mutual funds, or pension plans, for example. Finally, why should they have to sell? It's expensive to start with. And suppose I've made an astute and profitable investment in a company. Why should I have to give that up to keep the managers from using my money to support candidates I don't like?

Corporations have a fiduciary duty to shareholders, and you could even argue that Exxon has an affirmative obligation to make political contributions, since that surely helps them get favorable energy policy passed which goes towards their and the stockholders' bottom line.

Even if they do have such an obligation, it only exists because the law allows the contributions. The obligation itself, if it exists, does not in any way justify allowing corporate contributions. Further, what you say illustrates the problem. In effect, you think corporations should be allowed to bribe legislators. Contributions buy favorable treatment, according to you, and I agree. Where we disagree is that I think the Constitution permits us to ban the more egregious and extreme cases. Does the First Amendment really prevent us from outlawing the bribery of public officials?

"It hardly seems unreasonable to place limits on how this legally privileged mass of many people's money can be used by those who control it."

I agree, the problem being that the first amendment is extremely broad and not always reasonable. I mean, how reasonable is it to let neo-Nazis march through a Jewish enclave? It's not, but the first amendment protects it. So though I agree with you that corporations represent an unprecedented concentration of money and power, and that we need to find a way to limit their influence, I don't know that the Constitution as it currently exists allows such a limit.

Well, that's the argument, isn't it? I'd say that restrictions on corporations do not meaningfully restrict any individual's political rights, and that the absence of such restrictions actually interferes with some individuals' rights.

Fundamentally, corporate management is acting as an agent for shareholders. But the shareholders don't need this agent. They can contribute as individuals if they like, to the candidates they prefer, in the amounts they wish. The only thing the agency does is hand power to a few individuals, and distort, rather than strengthen, democratic processes.

The individual board members and stockholders of the corporation who want to use the corporation's money that way. You might say that they can spend their own money. Well, the corporation has more money, and they probably want to spend as much as is profitable to them

I'm sure there are LOTS of things that they'd like to use the company's money for, rather than their own, because there is more of it. Most of those things will get them prison terms for reasons that have been soundly illustrated above.

you could even argue that Exxon has an affirmative obligation to make political contributions, since that surely helps them get favorable energy policy passed which goes towards their and the stockholders' bottom line.

If that's the case, surely these corporate persons should have the right to vote also. Every argument you've made here wild support such an idea.

Ah, corporations.... Maybe Santorum has a point; if gays can marry why can't I marry a corporation and let him (or is a corporate spouse a "her"?) help fund my run for President? For years I've been shocked that liberals haven't used that line of reasoning to force the federal courts to rule on gay marriage. Citizens United is just a recent example of how the Courts have undermined our democracy's ability to regulate itself through legislation.

Has anyone looked at the First Amendment lately? Free speech is not limited to 'persons'. As for corporations possessing other fundamental constitutional rights, they have 4th amendment, due process, right to counsel, right to confront, and a pretty much all of the other rights not expressly limited to "persons born in or naturalized" or "citizens."

The proponents of reversing CU are proposing a roll back of constitutional rights that existed well before CU.

It has to do with the interpretation of the language and the fact a corporation is an artifical legal construct created for specific purposes, and that whatever rights are conferred upon it are up to whatever body charters it, those rights being only those necessary to support the purposes of the corporation, whose very existence is dependent on that charter. Or are they like Frankenstein monsters, once created doing what they will of their own volition, necessarily with the full protection of any constitutional right not explicitly limited to "persons?"

And John Marshall, for one. You aren't suggesting that your point on the language of the first amendment is definitive and universally agreed upon by all highly qualified judges, are you?

The proponents of reversing CU are proposing a roll back of constitutional rights that existed well before CU.

Part of the question I'm getting at is: who speaks for the corporation? I'd argue that no one has that right (short of unanimous consent by shareholders) By what right does the CEO of Exxon presume to spend corporate money to support political candidates? In other words, it's not enough to say a corporation has free speech rights. You have to describe some sensible mechanism whereby those rights can be acted on. I don't think you can do that.

Have I read the First Amendment? Here's the part about speech:

Congress shall make no law .... abridging the freedom of speech,

This says nothing about laws abridging the rights of individuals to use other people's money, with which they have been entrusted, to publicize their own views.

CEO's can speak all they want. But they shouldn't be allowed to spend my money to do so.

HSH makes my point (again): a corporation is a construct of the state, and can only do what the state permits it to do via its charter. Why, then, couldn't the state statute say that the corporation "may not conduct political activity"?

Or, if we want to analogize to non-profits, suppose the statute states that any corporation that engages in political activity loses its limited liability, much like a non-profit that engages in (certain) political activity loses its non-profit status?

McTx: As for corporations possessing other fundamental constitutional rights, they have 4th amendment, due process, right to counsel, right to confront, and a pretty much all of the other rights not expressly limited to "persons born in or naturalized" or "citizens."

Yes, and in general I think most/all of that is a good thing, but those rights are really concerned with the corporation personally, as opposed to the right for some corporation to spend $100 million on election advertising for Barack Obama, which implicates broader and competing Constitutional concerns.

You have to describe some sensible mechanism whereby those rights can be acted on. I don't think you can do that.

I can describe a mechanism that I think is sensible. First, the vast majority of corporations are privately owned, so getting 100% shareholder approval is no big deal. Second, where in the First Amendment do you derive the notion that a corporate entity can only speak if its owners are unanimous? That seems an artificial construct designed to limit an otherwise available and fundamental right. Corporations, like democracies, make decisions through a majority vote of the the ownership. A corporate act is presumed to be the act of the entity, as authorized or delegated by the shareholders. My rule is simple: if a corp wants to support a cause or a candidate, or someone wants to form a corp to advocate for some cause or issue, let them. It's a free country.

This says nothing about laws abridging the rights of individuals to use other people's money, with which they have been entrusted, to publicize their own views.

This is another artificial construct: a corp formed for the specific purpose of issue advocacy falls outside this, as do media corps, as do non-profits like the NAACP and privately owned corps. The real issue here is that some on the progressive left don't want non-individuals speaking on any political issue whatsoever because some non-individuals speak on issues that, according to some on the progressive left, skews the political process. As if the opposite voices from corporate entities are somehow not heard and taken into consideration. The proposed solution is a country-wide ban on all political speech by any and all corporations with a host of exceptions for non-profits, media entities, etc, and virtually no useful guidance on how content and subjective intent are to be judged.

a corporation is a construct of the state, and can only do what the state permits it to do via its charter.

Except that, per most Business Corporation Acts, a corporation can, and almost always is, formed to pursue "any lawful purpose."

Now, if you are proposing that states can and should limit the right of people to form a corp for the purpose of issue advocacy, please square that with the First Amendment rights of free speech and association. Bottom line: you are looking for non-existent technical grounds for abridging expressly granted constitutional rights because you don't like the content and effect of some of the speech. This is called censorship.

suppose the statute states that any corporation that engages in political activity loses its limited liability

It isn't free speech if the speaker is penalized. This is called a 'chilling effect' in constitutional jurisprudence. I look forward to the next thread complaining how the Bush administration disregarded the rule of law. We have a century or more of First Amendment jurisprudence that many here would overturn because they don't like what is being said by some but not all corporate entities.

McTx: Except that, per most Business Corporation Acts, a corporation can, and almost always is, formed to pursue "any lawful purpose."

Yes, except it wasn't always that way, and I don't see any reason why a state couldn't change its corporate law to only permit corporations to conduct "non-political business activity," or something along those lines.

Now, if you are proposing that states can and should limit the right of people to form a corp for the purpose of issue advocacy, please square that with the First Amendment rights of free speech and association.
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It isn't free speech if the speaker is penalized [by loss of limited liability]

I'm just saying that corporations, unlike people, are creatures of the state and, if a state were so inclined, it could repeal its corporate statutes tomorrow and the remedy would be...? (maybe that would be some sort taking for which corporate owners must be compensated)

On the "penalization" point, we have, right now, in the form of the Internal Revenue Code exactly that: non-profit entities, including religious entities, cannot engage in certain political activities including speech without losing their non-profit status under the Code. This is illegitimate in your view then?

Another difference between, e.g., the NAACP and IBM is that if I want to remain a member of the NAACP I have to pay my membership fee each year (some might call it "skin in the game") and meet the other qualifications for membership, whereas if I buy a share of IBM stock I own it forever (more or less).

Corporations, like democracies, make decisions through a majority vote of the the ownership. A corporate act is presumed to be the act of the entity, as authorized or delegated by the shareholders.

That's all lovely, and I know the lawbooks say that, but it's not true. Rather, it's not true for large publicly held corporations. Shareholders have virtually no control over the acts of such corporations, and they are the ones with the huge concentrations of money.

Shareholders "elect" directors, in Soviet-style single-candidate elections, where the candidates are chosen by management. It's extremely difficult and expensive to oppose these candidates, the more so since management gets to spend corporate funds in a proxy fight. And there are legal barriers as well. Even getting a shareholder vote on such a basic thing as executive compensation is difficult or impossible. So please, drop that argument.

My rule is simple: if a corp wants to support a cause or a candidate, or someone wants to form a corp to advocate for some cause or issue, let them. It's a free country.

Again, the issue is how a corporation makes its decisions, or rather who makes them. You are simply overlooking that question. Note that I actually agree with you that if "someone wants to form a corp to advocate for some cause or issue, let them." That's because the purpose is explicitly stated, and the funds available will presumably be contributed by indoviduals who share the corporation's objectives.

This is another artificial construct: a corp formed for the specific purpose of issue advocacy falls outside this, as do media corps, as do non-profits like the NAACP and privately owned corps.

Corporations themselves are artificial constructs. And, as I noted above, I have no objection to corporations formed for political, rather than business, purposes being involved politically. They are different animals. As I've said repeatedly, the fact that both types of organizations are corporations is a red herring. The way they operate, their financing, and their purposes differ dramatically, as do their methods of governance.

As for privately owned corporations, with few shareholders, it's true that unanimity will often be easy to achieve. It's also true that the few shareholders can easily give money as individuals, so stopping the corporation from doing so imposes no burden whatsoever. I myself happen to the sole owner of a one-member LLC. What difference does it make if I contribute, or the LLC does?

The real issue here is that some on the progressive left don't want non-individuals speaking on any political issue whatsoever because some non-individuals speak on issues that, according to some on the progressive left, skews the political process.

No. That's not "the real issue" at all, as my comments make clear. I'm happy for people to organize in order to speak more effectively on political matters.

What I'm not happy about is when the managers of a large business corporation use the corporation's money to support candidates. Why?

1. Because they are largely unaccountable to the shareholders.
2. Because many of the shareholders will disagree with the positions taken
3. Because these large concentrations of money exist only because of some special privileges granted by the law.

On the other hand, restricting this behavior imposes no burden on free speech.

The managers and shareholders remain free to contribute as they wish, or to form organizations with political ends. They just have to use their own money.

Pretty much every comment here that seeks to distinguish between political and non-political speech, natural persons and corporations, exceptions for media entities or entities formed for the exclusive purpose of advocacy, etc.

Newspapers, TV, radio etc entities are 99.99% corporate. They have free speech and free press rights.

We wouldn't even be having this discussion if CU opponents didn't object to what certain corporations were saying.

I don't see any reason why a state couldn't change its corporate law to only permit corporations to conduct "non-political business activity," or something along those lines.

Define 'non-political'. Let's take an example currently in the news. Rep. Peter King is apoplectic that the Obama administration is working with a friendly Hollywood studio to put out a movie in October about the Bin Laden take down. King's concern is that this is an overt political act calculated to impact the November election. Whether it is or it isn't, the kind of limits being discussed here would permit, if an administration were so motivated, suppression of something like this if the movie were deemed "political". Or worse, to not interfere with favorable corporate speech but to suppress the unfavorable. Do we really want that? I mean, really?

are creatures of the state and, if a state were so inclined, it could repeal its corporate statutes tomorrow and the remedy would be...?

Yes, in theory, this could happen. It would happen approximately 15 millennium AFTER we have a constitutional amendment banning free speech. ;-)

On the "penalization" point, we have, right now, in the form of the Internal Revenue Code exactly that: non-profit entities, including religious entities, cannot engage in certain political activities including speech without losing their non-profit status under the Code. This is illegitimate in your view then?

Apples and oranges. If a corp wants non-profit and thus tax exempt status, it has to agree in advance to certain rules. For-profits and corps with an expressly purpose are not tax exempt. If a non-profit wants to get political, it simply pays tax in that year on its earnings net of expenses. And, the donors can no longer deduct their donations. In exchange for special tax status, the non-profit waives political activity. As I noted earlier in this thread, even this is problematic. Churches, Planned Parenthood, the NAACP and many, many other non-profits skirt this rule continuously. The problem with attempting enforcement is that the gray area between the "political" and the, for example, "educational" is quite large.

The real issue here is that some on the progressive left don't want non-individuals speaking on any political issue whatsoever because some non-individuals speak on issues that, according to some on the progressive left, skews the political process.

I'd say the "some" you describe are relatively few and far between, and I certainly wouldn't describe my position as anything like that, McKinney.

What I think is at issue are matters practical and constitutional, and how they interact. My position is that, as creatures of law, corporations can be as limited in what they can do as the law creating them decides. Of course, if the law doesn't grant them certain rights, they are useless.

But the people who compose the corporation exist outside the corporation, and have rights that don't depend at all on the existence of the corporation. I'd suggest that there is no necessity for the corporate form for people to pool their resources in free association to collectively engage in free speech, or at the very least, no need for the kind of corporate form needed for GE or Bank of America or Ford to exist and operate properly.

I'd also suggest that, as a practical matter, there are some forms of speech that corporations must be able to engage in to properly operate, some of which may be political in nature. I just don't think they need to spend as much as they want on any kind of political speech they want. I think the law should allow them whatever latitude speech-wise that is beneficial to society in general by allowing them to operate as intended, but that there is no constitutional reason that they can't be limited if that is what is best for society in general.

In short, there is no reason individual rights of the people composing a corporation need to extend to the corporation, since those rights exist without regard to the corporation's existence, and that, as creatures of law, the law can limit corporations as deemed best for society.

If all the people who could be said to compose, frex, GE want to get together to engage in political speech, they can do so whether GE can do so as a corporation or not.

Again, the issue is how a corporation makes its decisions, or rather who makes them. You are simply overlooking that question.

I suppose this is a matter of subjective opinion. Most publicly traded corps are owned by institutions, not individuals. You may not like the mechanism of corporate democracy, but it is there. Regardless of whether the mechanism is satisfactory, abridging free speech rights isn't the price a company ought to have to pay. Further, suppose a hypothetical corporation did allow an open slate of candidates and everyone showed up to vote? Would you have an exception (yet another exception, if you add up all of the exceptions in this thread)?

I'm happy for people to organize in order to speak more effectively on political matters.

You may be, but many here are not. And those that are tie so many strings that compliance becomes a major burden, more chilling effect.

On the other hand, restricting this behavior imposes no burden on free speech.

I am not sure it is self evident that a majority of the stock ownership of Exxon, for example, disagrees with Exxon's lobbying in the public domain for candidates favorable to its economic concerns.

As for imposing no burden, you are telling the corp that it can't speak freely.

It's also true that the few shareholders can easily give money as individuals, so stopping the corporation from doing so imposes no burden whatsoever.

Other than telling people they can't speak through their company, and leaving aside the anonymity issue, why should the state be in the business of telling people through what entity they must speak?

I'd say the "some" you describe are relatively few and far between, and I certainly wouldn't describe my position as anything like that, McKinney.

If you and others here don't care what is being said, why does anyone here give two hoots about CU? Is the idea of corporate speech, in a vacuum, so offensive that it needs to be limited? Just because it's a corporation doing the speaking?

Does someone want to address my Bin Laden move example?

I'd also suggest that, as a practical matter, there are some forms of speech that corporations must be able to engage in to properly operate, some of which may be political in nature. I just don't think they need to spend as much as they want on any kind of political speech they want. I think the law should allow them whatever latitude speech-wise that is beneficial to society in general by allowing them to operate as intended, but that there is no constitutional reason that they can't be limited if that is what is best for society in general.

Your points seem to be: it's perhaps necessary for a corp to occasionally engage in speech that is political to a degree, and if they don't spend too much money doing so and if the speech is socially beneficial in line with the legitimate interests of the company, then, corporate speech is ok. How does anyone write that into law that in a way that isn't so riddled with loopholes that people like me could retire off of litigating what is meant?

that, as creatures of law, the law can limit corporations as deemed best for society.

So, if society is benefited by suspending the 5th and 14 amendments as to corporations, well, that's just fine?

I'd point again to the I.R.C. But in thinking about that, I wonder what portion of the restrictions on political activity by non-profits were enacted under the assumption that for-profits couldn't engage in the same activities under other laws.

The "media company" example is problematic, which is part of the reason why I don't think the federal government stripping corporations of all "free speech" rights is the way to go (why not stick with McCain-Feingold with "freedom...of the press" giving a constitutional hook to distinguish media companies). But what I'm talking about is modifying state corporate law, a different animal (IMHO).

Yes, in theory, this could happen. It would happen approximately 15 millennium AFTER we have a constitutional amendment banning free speech. ;-)

I agree that repealing free speech would happen before threatening corporate limited liability in the good ole U.S. of A.

Apples and oranges. If a corp wants non-profit and thus tax exempt status, it has to agree in advance to certain rules. For-profits and corps with an expressly purpose are not tax exempt. If a non-profit wants to get political, it simply pays tax in that year on its earnings net of expenses. And, the donors can no longer deduct their donations. In exchange for special tax status, the non-profit waives political activity.

Well, no, you've presumed the ability to organize in corporate form here and then assumed the issue is one of "for-profit" or "non-profit" and if you want to be the latter there has to be a cost, including certain free speech rights. Why can't the ability to form a corporation in the first place be conditioned upon the same thing?

To put it a different way, "In exchange for limited liability status, the corporation waives political activity."

First, you can't define "political" in any meaningful way, so in a variety of applications tangential to the main purpose of McCain-Feingold, i.e. typcial commercial or tort litigation, the defendant would have to defend its corporate status by showing that it had never done anything "political". So, that's a major practical consideration. On your main point, and leaving aside the practical consideration, you still have the issue of NAACP, Planned Parenthood and media entities, all of which are corporations. And you have the further question: why limit speech in the first place, regardless of who the speaker is?

So it's illegitimate to prevent non-profits from engaging in "political activity" because such activity is not definable in any meaningful way? Or is it just that the loss of non-profit status is less of a debacle than loss of limited liability and so use of the former as a penalty is permissible?

On your main point ... you still have the issue of NAACP, Planned Parenthood and media entities, all of which are corporations.

As I note above w.r.t. to the NAACP, it may be organized as a corporation but it functions in a much much different manner than, say, IBM (or even a large privately owned corporation). I haven't looked but I presume Planned Parenthood too. As I've noted media entities are a hard case but again, there's a constitutional basis to distinguish.

Ex ante or ex post?

It matters? In what way?

Maybe I was being too cryptic. The ex ante limitation would be crafting a state corporate statute to, e.g., require that corporations give up their 5th and 14th amendment rights (assuming they have them) as a condition of granting limited liability. Ex post would be taking away such rights after the corporation was formed in expectation thereof. The former seems much less objectionable (though probably futile).

And you have the further question: why limit speech in the first place, regardless of who the speaker is?

Well as long as we can lodge practical objections, for all the reasons in this thread. Corporations have limited liability, they are (generally) immortal, in the most problematic cases the for-profit one's wealth is controlled by agents not owners, they wield unfathomable quantities of money even on a net income basis that can and do overwhelm the influence of individuals.

More fundamentally, "who" is speaking here? "GE believes the proposed invasion of Iraq is a good idea." Or "GE endorses Mitt Romney for President." What does that add to the debate, especially if we omit the "GE" from the message and replace it with "attractive actors express concern over Obama's hatred of American in contrast to Mr. U.S.A. Romney" on 30% of the TV ads running in Iowa? Or rather, how does that assist to the United States as a means of organizing individuals in a civilized society? How about the fact that a significant % of GE (not to pick on GE, which is now almost 120 years young) stock is owned by non-U.S. citizens/residents and most of their profit is earned outside the U.S. (and square that with what appears to be perfectly uncontroversial limits on the political activities of non-U.S. citizens/residents outside the corporate form)? IOW, is Deutsche Bank similarly free to intervene in U.S. elections?

The point that you are missing here is that "a corp" has no agency whatsoever. It has no opinion about who is running for anything, doesn't care about global warming, doesn't care about open carry laws.

I have no problem with any human being, anywhere, supporting any position they care to, or engaging in any political activity they like, assuming they have the legal standing to do so. I.e., they are not foreign nationals contributing to public candidates, etc.

The only thing I'm looking for is for them to do it with their own time and money, not the corporation's.

This is not a complicated concept.

And yes, there are entities that exist under the corporate form in current US law that exist specifically to engage in issue advocacy, political activity, etc. We *already have* the legal infrastructure to recognize them and distinguish them from other corporate entities. Those entities should continue to enjoy Constitutional protections, because they actually *are* instances of groups of people acting collectively to engage in protected activities like speech.

You seem to want to present this as some ungodly complicated thing. It's not.

"Exxon" doesn't spend millions of dollars, per year, on lobbying. The directors of Exxon do, using money that does not belong to them, and in many cases without the knowledge, permission, or agreement of the folks who do have a claim on those monies.

If you can't see the fundamental corruptness of that, you are being willfully obtuse. IMVHO.

If you think that allowing that to continue represents any meaningful kind of liberty, likewise.

Corporations do not merit Constitutional protections because they are not who the protections were intended for. Period. If you find that at all debatable, kindly read the text of the document and observe how the word "person" is used.

And yes, there are entities that exist under the corporate form in current US law that exist specifically to engage in issue advocacy, political activity, etc. We *already have* the legal infrastructure to recognize them and distinguish them from other corporate entities. Those entities should continue to enjoy Constitutional protections, because they actually *are* instances of groups of people acting collectively to engage in protected activities like speech.

You seem to want to present this as some ungodly complicated thing. It's not.

I am not aware of any statutory guidance that allows corps of an advocacy nature to exist in a manner different from a for-profit venture. I am pretty sure nothing of that nature exists. And besides, CU was an advocacy group, so why is the left so upset that the First amendment applies to them.

Also, the free speech aspect of the 1st A isn't limited to "persons". Religion, speech and the press are blanket freedoms, applicable to all. The right to assemble and to petition is granted to "the people."

If it isn't complicated, then please tell me if a corp-produced candidate-friendly movie, for profit, the month prior to an election can be legally suppressed by the state?

Russell, do you have a working definition of 'political' that we can use to limit what can and cannot be said? You may think it's simple, but unless we have that basic concept down, there is no way to draft legislation, or even have a discussion, about what legislation can or should look like.

"Exxon" doesn't spend millions of dollars, per year, on lobbying. The directors of Exxon do, using money that does not belong to them, and in many cases without the knowledge, permission, or agreement of the folks who do have a claim on those monies.

If you can't see the fundamental corruptness of that, you are being willfully obtuse. IMVHO.

Lobbying and taking out TV and print ads are two different things. I agree with you on lobbying. It's not protected speech. It's bribery.

That said, with respect to speech, are Exxon's large shareholders complaining?

If we separate lobbying from political speech, why not just go after the former and leave the latter alone? Or, at a minimum, go after the former first and, having done that, see if the latter is really that big of a deal.

russell: Corporations do not merit Constitutional protections because they are not who the protections were intended for. Period. If you find that at all debatable, kindly read the text of the document and observe how the word "person" is used.

It requires distortion to read 'person' as meaning one thing, then another within the same clause and from clause to clause. It means, in my opinion, a substantial revision of the Fourteenth Amendment. As to the matter of construction, the sense seems to me to be with Mr. Justice Woods in Insurance Co. v. New Orleans, supra, Fed.Cas.No. 7,052, 1 Woods at page 88, where he said, 'The plain and evident meaning of the section is, that the persons to whom the equal protection of the law is secured are persons born or naturalized or endowed with life and liberty, and consequently natural and not artificial persons.'

History has gone the other way.

Taken from my link to Brad DeLong's commentary above.

Shorter: modern SCOTUS jurisprudence requires "person" to have one meaning in the first portion of the first section of the 14th Amendment, a different meaning in the second portion of the same section, and then switch back to the first meaning in the section section of said Amendment.

Shorter: modern SCOTUS jurisprudence requires "person" to have one meaning in the first portion of the first section of the 14th Amendment, a different meaning in the second portion of the same section, and then switch back to the first meaning in the section section of said Amendment.

Well, if you look at the amendment, you see:

1. "persons born or naturalized"--which can only be people.

2. "citizens" appears in the next sentence referring to "privileges and immunities".

3. "persons", unmodified by "natural" appears in the next two sentences (due process and equal protection).

It isn't modern jurisprudence or a strained interpretation to impute "natural or corporate" to "persons" in either the due process or equal protection portions of the 14th amendment, unless there is a particular reason to not afford corporations due process or equal protection.

The 4th amendment is predicated on "the right of the people to be secure . . .", yet the construction of this language includes businesses owned by people in the corporate form. Otherwise, it would lawful to raid any corporation's office without probable cause and without a warrant.

I am not aware of any statutory guidance that allows corps of an advocacy nature to exist in a manner different from a for-profit venture.

As a very simple example, the FEC rules for PACs, which clearly distinguishes between PACs sponsored by a corporation or union, and PACs sponsored by plain old people.

do you have a working definition of 'political' that we can use to limit what can and cannot be said?

As a simple example, the political and lobbying activities that, in this case, 501(c)(3) corps may not participate in.

There are areas where things overlap, and I'm not looking to prevent, to use your example, BP from featuring windmills in their ads.

What I would like is for them not to be able to claim protection under the First Amendment if they say things that are untrue or misleading, and somebody calls them on it, as happened in Nike vs Kasky.

I agree with you on lobbying. It's not protected speech.

I believe it is generally considered to be protected as part of the right to petition the Government for a redress of grievances.

Lobbying per se - directly addressing Congresspeople or their staffs to advocate a particular point of view - is a perfectly reasonable activity, and can actually add a lot of value to the legislative process.

The problem with lobbying is the amount of money and perqs involved, and the disproportionate level of access that it gives to folks with extreme amounts of money to put on the table.

It will be hard to control as long as money equals speech, but that's another thread.